Furness v. Read

Robinson, J., delivered the opinion of the Court. The facts in this case are simply these — An attachment was issued at the instance of Thomas Eurness, Christopher Furness and William Gray, trading as Thomas Furness & Co., against the property of David W. R. Read, a nonresident, to recover freight claimed to be due them as owners of the steamship Boston City, on a cargo of iron ore, from Benisaf, Africa, to Baltimore. Read, the defendant, gave bond as required by the Code, with George P. Cronise and Daniel Malone as sureties, and the attachment was dissolved. At the trial of the short note case, on motion of the appellants, plaintiffs below, and against the objection of Read, the defendant, sixteen other persons, part-owners of the steamer trading together as such in partnership, and employing the firm name of Furness & Go. in charter parties, were made co-plaintiffs; and upon issues joined in the ca'se as thus amended, judgment was recovered against Read for $3,601.10.

This suit is brought on the attachment bond, the breach assigned being the non-payment of the judgment thus recovered ; and the question is whether the sureties on the bond are liable for the payment of this judgment? No principle is better settled, than that a surety on a statutory bond, has a right to stand on the very terms of his contract, and his liability will not be extended beyond the fair import of the words used. His liability is one ³ not to be extended by implication, nor will it be inferred that he has agreed to do more than that which is fairly expressed in the bond: “To the extent, and in the manner, and under the circumstances pointed out in his contract, he will be held bound, but no further.” What then are the terms, and the circumstances under which this bond was executed? The bond on its face recites, that whereas Thomas Eurness, Christopher Eurness and William Gray, trading under the firm name of Thomas Furness & Co., had sued out an attachment against the property of Read, and whereas the defendant was desirous to dissolve said attachment, on giving bond with security as required by law, “Row the condition of the above obligation is such, that if the said defendant shall satisfy any judgment that shall be recovered in said case against him, then the said obligation shall be void.” The obligation was to pay any judgment that might be rendered in a suit brought by Thomas Furness, Christopher'Furness and William Cray, trading as Thomas Furness & Co., plaintiffs, against David W. R. Read.

The judgment for the non-payment of which this suit is brought, is not one rendered in favor of the original plaintiffs, Thomas Eurness & Co., the attaching creditors, but one rendered under an amended state of the ple.adings, by which all the part-owners of the ship are made plaintiffs, all of whom had an interest in the freight, to recover which the attachment was issued. As the suit was originally brought, the plaintiffs, Thomas Eurness & Co., could not have recovered at all, because it is well settled, that where the contract is joint, either by agreement or by implication, as where the part-owners are general partners or quasi partners in the particular adventure, they must sue together. Parsons on Shipping and Admiralty, 117, (note); Abbott on Shipping, 115. Rot only were new parties made plaintiffs, but the nature and character of the cause of action